The Tyranny Ratchet

The welter of opinions arising out of the al-Marri decision from the Fourth Circuit still needs to be deciphered by legal experts. But this quote from Judge Diana Gribbon Motz is very disturbing:

Our colleagues hold that the president can order the military to seize from his home and indefinitely detain anyone in this country — including an American citizen — even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world.

That last qualifier is important, because, as colleagues of mine at Seton Hall have argued in a recent profile of 517 detainees, “55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda.”

Given the US’s penchant for mass imprisonment, perhaps we should not be surprised by this latest turn of events. But given the brutality documented by Jane Mayer in her book The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, we have many reasons to be worried. (For links to 8 reviews of the book, look in the middle of this paragraph.) Here is Andrew Bacevich’s summary of her findings:

Since embarking upon its global war on terror, the United States has blatantly disregarded the Geneva Conventions. It has imprisoned suspects, including U.S. citizens, without charge, holding them indefinitely and denying them due process. It has created an American gulag in which thousands of detainees, including many innocent of any wrongdoing, have been subjected to ritual abuse and humiliation. It has delivered suspected terrorists into the hands of foreign torturers.

Under the guise of “enhanced interrogation techniques,” it has succeeded, in Mayer’s words, in “making torture the official law of the land in all but name.” Further, it has done all these things as a direct result of policy decisions made at the highest levels of government. . . . .Mayer substantiates [these facts] in persuasive detail, citing the testimony . . . of military officers, intelligence professionals, “hard-line law-and-order stalwarts in the criminal justice system” and impeccably conservative Bush appointees who resisted the conspiracy from within the administration.

George Lakoff bitingly accuses a somnambulent press of ignoring nearly all of this in order to create a comforting cultural frame for our actions:

[We] have a cultural narrative — basically on the hero-villain structure. The villain in this is Ahmadinejad who is inherently evil… It’s a dangerous world out there, so [hawks] will say. So the question is, ‘What do you do?’ and the answer, in the hero/villain plot structure, is the hero has to fight the villain… The assumption is that we’re moral and anything we do to fight this villain is going to be moral, and that could be utterly ridiculous. We could create utter catastrophe over there, but the story is what matters in the public mind… and if we stick to it, and we’re virtuous, and we’re strong, we’ll win.

As a Cardinal, [he] was a staunch critic of the U.S. led invasion of Iraq. On one occasion before the war, he was asked whether it would be just. “Certainly not,” he said, and explained that the situation led him to conclude that “the damage would be greater than the values one hopes to save.”

Justice Scalia, dissenting in Hamdi, warned that allowing the President to hold U.S. citizens as “enemy combatants” is to vest the President with the ultimate power of tyranny, exactly what the Founders most wanted to prevent: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

We can only hope that the more extreme dimensions of the al-Marri decision will be reversed by a Supreme Court wary of absolute power. But as Tacitus noted, once some forms of tyranny are entrenched, they affect culture and politics in lasting ways.

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Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

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